Our History of Media Protection

By Nathan Siegel
Monday, October 3, 2005

A determined prosecutor demands that prominent journalists testify about their confidential sources to a grand jury. The courts side with the prosecutor, reasoning that journalists have no more rights than ordinary citizens to withhold information from criminal investigators. A journalist goes to jail and is released after a relatively short time. Commentators debate whether a First Amendment crisis is looming, while legislators consider passing a law to protect journalists from forced disclosure of their confidential sources.

Sound familiar? It should, but not just because it describes the case of New York Times reporter Judith Miller. Strikingly, since the beginning of modern American journalism this scenario has repeated itself in each generation almost on cue, about every 35 years.

And if history does repeat itself, journalists can take some comfort in knowing that every time this crisis has erupted, the jailing of journalists has been the catalyst for changes in the law that protected a subsequent generation of reporters.

Though disputes over confidential sources date to colonial times, the issue first made headlines in the modern era at the end of the 19th century. A Baltimore Sun reporter, John Morris, refused to identify to a grand jury his sources for a story about bribery of public officials. Morris spent just two days in jail, but even that brief sentence spurred the Maryland legislature in 1896 to pass the first state law barring subpoenas for reporters' confidential sources.

About thirty-five years later, there was a spate of similar cases. Some 10 reporters in several states were jailed for periods ranging from one to six weeks for refusing to disclose sources to grand juries. One of them, a New York Tribune reporter who wrote a story about customs smugglers, lost the first attempt to persuade appellate courts to recognize a "reporter's privilege." But the jailings attracted national attention, and 10 states responded by enacting laws similar to Maryland's. By 1935 reporters again enjoyed relative freedom from this kind of prosecution.

It lasted until 1970, when federal prosecutors in the Nixon administration began issuing dozens of grand jury subpoenas to journalists. Many asked for information about dissident groups such as the Black Panthers or antiwar organizations. Four reporters, including one from the New York Times, took their cases to the Supreme Court and lost by one vote in Branzburg v. Hayes . For a brief time it appeared that reporters in large numbers would have to either dishonor promises of anonymity or go to prison.

Yet once again these decisions created a backlash that left reporters in a better legal position than ever before. Ten more states quickly passed shield laws. Lower-court judges proved to be uncomfortable with the idea of actually jailing reporters en masse, so they read Branzburg narrowly and protected journalists in most instances. The Nixon administration voluntarily adopted internal guidelines that discouraged issuing subpoenas to journalists. As a result, for almost three decades not a single reporter was incarcerated by a federal court for protecting a source.

Fast-forward to the past year and the familiar pattern has started anew. Exactly 35 years after the first Nixon-era subpoenas, six reporters from many of the country's most prominent news organizations, including Judith Miller, have been jailed or fined. And that number is likely to increase. As a result, Congress for the first time in a generation is seriously considering a federal shield law similar to those some states started passing over a century ago.

This pattern is not mere coincidence. Rather, I think, it reflects a fundamental conflict between the judiciary and the press that tends to recur whenever a new generation of judges and prosecutors uninfluenced by the memory and lessons of prior conflicts emerges. This time either Congress or the Supreme Court should take the lessons of history to heart and put this recurring controversy to rest.

Time and again Americans have made clear that confidential newsgathering is an important part of a free press and that journalists who protect sources should not be treated as scofflaws. That is why every time a movement has started among a new generation of prosecutors and judges to force disclosure of sources, other democratic institutions have responded in kind. If the Supreme Court will not intervene, as it did not in this case, Congress should recognize that generations have already spoken on this issue and pass a federal shield law.

The writer is a Washington lawyer who has represented a number of journalists in First Amendment cases. He has represented The Post in several matters, none involving subpoenas of journalists.

© 2005 The Washington Post Company